Schor and Council could tangle over Bernero’s secret McIntyre documents

Barely settled into the Mayor’s Office, Andy Schor will face an early test of his collegial relationships with the City Council.

Looming is a battle over whether Lansing’s legislative body can order the release of documents under the state Freedom of Information Act over the opposition of the Mayor’s Office.

The issue is twofold. The first question centers on the City Council president waiving attorney client privilege asserted by the mayor. The second deals with the City Attorney’s Office and its conflict of interest when the Council president legally orders a reversal of a FOIA denial, but the Mayor’s Office refuses to comply.

The fight has been brewing for weeks, originating from a request by City Pulse for documents related to the exit and large payout to former City Attorney Janene McIntyre. The original document request was granted in part, but heavily redacted based on the claim by former Mayor Virg Bernero citing attorney client privilege. An appeal of the Bernero administration’s action to City Council President Patricia Spitzley resulted in a partial reversal of the decision.

Spitzley, an attorney, served as the legal director for the Michigan Department of Natural Resources for a time. As part of her job, she routinely handled FOIA requests for the department. In a Dec. 21 letter, Spitzley ordered the release of billing records from Dykema Gossett, the law firm that handled the negotiations for McIntyre’s exit from the city.

“The document is to be released unredacted,” she wrote. But City Attorney Jim Smiertka is refusing to release the materials Spitzley cleared for disclosure.

“The Attorney Client Privilege has not been waived in this case,” Smiertka said by email last week.

Attorney client privilege is a legal concept that keeps legal advice and conversations between attorneys and their clients secret. It can only be broken if the client releases the privilege. But who exactly the client is in this situation is unclear.

With a new mayor in office, the question now is whether the claim of privilege, designed to ensure secrecy, applies to the executive office in general or only to the person in the office at the time — Bernero.

If it is the former, Schor, sworn in on Monday, must decide whether to fight with the City Council to withhold the documents or release them. On the other hand, if the privilege was with Bernero acting as himself, can the City Council release the documents anyway?

Smiertka did not respond to questions related to the privilege. Schor said that he was unaware of the issue and wants to consult with the the city attorney.

The McIntyre departure issue has hung over the city for nearly two years. In January 2016, she requested and was granted a Family Medical Leave by the city. Records show that the city hired Dykema Gossett on Jan. 7 of that year to negotiate her exit. She left the city’s employment on March 4. Under a separation agreement signed by Bernero and McIntyre, she was paid $160,663 in compensation. Bernero characterized nearly $80,000 of that payout as “greasing the skids” for her departure and less expensive than a legal fight. He has never disclosed why she left or what the additional compensation addressed.

For her part, Spitzley said she is uncertain where the privilege sits now that Bernero has left office and Schor has been sworn in.

That in turn could result in the Council seeking outside legal representation to determine the next steps in addressing the conflicting issue. She said she believes the city attorney is in conflict on this issue because he is serving both the city council and the Mayor’s Office.

She is also concerned that there is a structural issue between the power of the Council and the administration of the mayor. Under FOIA, appeals go the head of the public body — in this case the City Council — before a court action. The appeal to the head of the body can be circumvented completely and the issue taken to circuit court.

Because the Lansing City Charter makes the head of the public body the Council president, refusing to comply with her Dec. 21 letter could have further ramifications.

Spitzley said she believes the refusal to release the documents is a “likely charter violation.”

Technically, the Council has no official president. That will likely change tonight when Councilwoman Carol Wood is expected to win the approval of the body as its new president. She served as vice president last year and was briefed on Spitzley decisions regarding the FOIA appeal.

She said she will continue to pursue the release of the documents as ordered by Spitzley and believes “it is likely” the body will have to hire outside counsel to shift through the legal issues the situation gives rise to. Such a move will require approval of five of the eight members.

Councilwoman Jody Washington, who represents the First Ward and will likely be selected as vice president tonight, said she supports Spitzley’s decision. In her position at the state Department of Corrections, Washington handles FOIA requests as well.

“I’ve never known of a bill to have attorney client privilege,” she said. “I support releasing the documents.”